The recent High Court case, Glencore v The Commissioner of Taxation, has attracted attention from the entire legal profession, both the law firm and corporate counsel side.
In The Future of Legal Professional Privilege (LPP), a live poll of over 100 legal practitioners has revealed how commonly claims of LPP are made in practice. Among respondents, 65% said they have had to assert legal professional privilege to prevent disclosure of their client’s confidential information at some point in their careers.
Tyrilly Csillag, Head of In-House at Practical Law Australia, said the outcome of the Glencore case reminds legal counsel about the limitations of LPP and the need to comprehensively understand an organisation’s cybersecurity stance.
“Understanding definitively now that our client’s privilege will not operate as a “sword”, in-house lawyers need to revisit their map of where the organisation’s privileged information is physically held and digitally stored, and by whom, and then reassess the security measures that protect that information,” she explained.
Tyrilly is the moderator in The Future of Legal Professional Privilege, a webinar of expert speakers, including Laura Hawes, Head of Dispute Resolution at Practical Law Australia.
Laura provides a refresher on the fundamental principles underpinning LPP, a clear understanding of which remains critical for practitioners (both in private practice and in-house), notwithstanding the High Court’s decision in Glencore.
The Thomson Reuters webinar is also joined by Chris Drummer, Director, Projects and Advocacy, APAC, Association of Corporate Counsel (ACC) and Matt Mackenzie, Partner, Disputes + Investigations, Gilbert + Tobin.
Ready to join our complimentary webinar featuring a refresher on LPP by Practical Law? Register to view The Future of Legal Professional Privilege on demand.
Legal professional privilege a shield, not a sword
According to Matt Mackenzie, Partner, Disputes + Investigations, Gilbert + Tobin, the High Court’s decision in the Glencore case confirms the function of LPP as a shield.
“This is a decision which has understandably created a lot of interest and, I think, concern within corporate Australia. But at the outset, I wanted to perhaps alleviate one concern which seems to be taking hold and a view that seems to be propagating, which is that there is somehow some uncertainty about the future of legal professional privilege, or how it will apply.”
Matt suggests that legal professional privilege will continue to exist in the form we currently know it.
“The significance of the judgment is not actually what it says about legal professional privilege, but rather the gap it highlights in the law to address scenarios like those, which were an issue in the case,” said the Gilbert + Tobin Partner.
Implications for client candour
Speaking on behalf of the ACC, Chris reminds the webinar audience that LPP has a history in Australian law for a reason.
“Legal professional privilege has long been established and entrenched in Australian law as a fundamental right. It is a critical feature of the administration of justice, which lawyers can confidently play a role,” said Chris.
Chris shares some key concerns for in-house lawyers seeking to protect the interests of their clients. For instance, the Glencore decision could erode client candour and may incentivise cyber criminals to attack law firms that hold sensitive client information.
“These new threats to data security could have significant impacts on information held by lawyers and its privilege,” the ACC Director said.
Another item on the association’s advocacy agenda is the new whistleblower laws, around which LPP implications may arise, including when in-house legal counsel blow the whistle themselves.
The panel answered questions from the audience during the live stream, providing practitioners with further commentary on the issues raised.